Galbraith's Building and Land Management Law for Students

Michael Stockdale, Rebecca Mitchell, Stephen Wilson, Simon Spurgeon, Russell Hewitson, Mick Woodley

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136439728
• Edition: 6
• Topic: Architecture
• Subtopic: Architecture General

Ideal for first year Undergraduate students taking law modules on Construction, Surveying, Planning and Engineering courses, Galbraith's Building and Land Management Law for Students is an excellent overview of the key legal issues in the construction industry.

Clearly written and wide ranging coverage of key legal principles by construction lecturers and professionals, this textbook highlights the need for students on construction related courses to access information on how the law relates to them, without getting into the dry, heavy detail of the full scale legal texts.

This sixth edition has been fully updated and covers the latest JCT Standard Form Building Contract requirements and key EU directives, including Corporate Manslaughter, Employment Law, Tenant Planning Law regulations and Health and Safety acts.

1

The nature of law

Introduction

Any society quickly finds that it needs rules or laws to enable it to function smoothly. Consider the results if you had decided to drive to work today on the right instead of the left. People need to be able to live and go about their business in certainty, knowing that they can expect others to abide by the same rules. It is probably true that most people obey most of the rules most of the time. They may not have any precise knowledge of the actual rules which they are obeying, but that precise knowledge only becomes important when disputes arise or problems have to be solved.

As society evolves and becomes more complex, the number of laws increases and the types of laws become more sophisticated. Initially people need laws to protect their person or their property. Some rules accord with basic ideas of morality, e.g. not killing or not stealing, but it is not essential for all the rules to have a moral base. For instance, when we create a rule for motorists that they must drive on the left the rule commands obedience simply because it is necessary and certain.

Although certainty is an important principle in any legal system, the rules of law should also aim to achieve justice. This is sometimes accomplished by giving a discretion. Some areas of English law are subject to discretionary principles known as equity. It should be remembered that laws are equally binding even if they are thought to be unjust. The remedy then is to seek to reform the law, not to violate it.

Sanctions

If a law is disobeyed, there must be some effective means by which it can be enforced. This may be described as a sanction and could take the form of a fine, imprisonment, an award of damages or an injunction, which is an order of the court forbidding certain actions or behaviour. Although such sanctions may deter people from breaking the law, in fact the reasons for obeying the law may be far more complex. A person may obey the law because he or she fears the disapproval or hostility of others, or because he or she believes in the ‘rightness’ of the rule, or because he or she sees obedience of the law as a duty owed as a citizen.

Divisions of the law

It should be noted that all the contents of this book relate to English law. Although it is appropriate to talk about the British Constitution it should be remembered that Scotland has a different system of law to England. Whereas some of the rules are common to both countries, there are still significant differences. These are most apparent in areas like the system of land holding and in the structures and procedures of the courts.

English law may be subdivided in a number of ways. A simple division would be into criminal and civil law. It is quite common for the layman to believe that the bulk of our law consists of criminal law. This inevitably results from the publicity given in the media to major criminal cases. In this sense the law is like an iceberg, the criminal law is the part seen above the water and the civil law is the mighty bulk that lies below. The state has an interest in preserving our society and upholding law and order, and it makes criminal laws to secure those objectives. A person who infringes those laws commits a criminal offence for which he or she can be prosecuted by the state. The principal objectives of the criminal law may, therefore, be seen to be to deter and to punish. The civil law protects rights and creates obligations between individuals, although sometimes those individuals will be large public corporations, government departments, local authorities, etc.

There is no simple way to classify civil law, but it may be subdivided into the law of contract, the law of tort (i.e. civil wrongs), the law relating to property and the law relating to persons. The rules of civil law must deal with matters as diverse as contracts for the sale of goods, actions for damages for negligence, planning applications and compulsory purchase, divorce, tenancy, creation of companies, contracts of insurance, making a will, money lending, recovery of debts, defective workmanship and unfair dismissal.

Language of the law

Every profession has its language or jargon, which is often a convenient shorthand method of communication between people engaged in that profession. With its long history, the language of the law is especially rich as it frequently uses Latin expressions such as res ipsa loquitur (the facts speak for themselves) or caveat emptor (let the buyer beware). Different terminology applies to criminal and civil law. In criminal proceedings a person is arrested, charged with an offence and prosecuted in summary or indictable proceedings by a prosecutor. If the accused person is found guilty he or she will be sentenced and punished. If found not guilty, he or she will be acquitted. In a civil action a claimant (formerly known as a plaintiff) sues a defendant. If the defendant is found to be liable he or she may be ordered to pay damages or an order of the court such as an injunction may be made against him or her. Where the terminology is correctly used it is possible to tell whether a case concerns criminal or civil law.

Although it is convenient to break down the mass of English law into subdivisions for the purposes of study, it should be realized that these various divisions of the law are not mutually exclusive. It is possible for one set of facts to give rise to both civil and criminal liability. The simplest example is the motorist who drives carelessly and injures a pedestrian. A motorist may both be prosecuted in criminal proceedings for an offence under the Road Traffic Acts and be sued in civil proceedings by the injured pedestrian hoping to recover compensation. Similarly, an employee injured at work may wish to bring civil proceedings against his or her employer to recover damages where the employer has been negligent in caring for the employee’s safety. Arising out of the same set of facts, the Health and Safety Executive may prosecute the employer for breaches of the Health and Safety at Work Act 1974.

Making the law

Unless some catastrophic event like a war or a revolution occurs, which may cause a country to adopt a completely new system of law, the law-making processes will have developed over a period of centuries. Many of the rules of English law which are still in force are of considerable antiquity. Laws do not become ineffective merely because they are very old. Indeed, some old rules have been used very imaginatively by the judges in the courts to create principles relevant to modern life.

In the early stages of law making, custom will usually play a large part. As the needs of a society become more sophisticated, custom as a source of law tends to be superseded by more formal sources. Local custom may still be upheld as a valid part of the law where it can be shown that the custom is reasonable and certain and has been continued without interruption since time immemorial. For practical purposes this normally means that the custom must be shown to have existed during living memory. Occasional examples still come before the courts.

The two main sources of law in our system today are legislation (laws made or approved by Parliament) and judicial precedents (binding decisions of the judges). Both of these sources of law must now take account of the fact that the United Kingdom is a member of the European Union (see Chapter 2) and note the impact of the Human Rights Act 1998 (see later in this chapter).

New legislation

Law-making authority is vested in the Crown and Parliament, although the role of the Crown is now almost entirely formal. Our complex modern society requires rule-making techniques which are capable of coping with economic, social and welfare problems. Parliament, consisting of the House of Lords and the House of Commons, is said to be supreme, but in practice its ability to make rules must be viewed subject to a number of limitations. By virtue of the European Communities Act 1972 a new element of European Community law was introduced into our system. European Community law takes precedence over the national law of any member state. This, therefore, imposes a limit on the ability of Parliament to make whatever laws it wishes. If English law is found to conflict with European Community law the Community law will prevail. The United Kingdom is a signatory to the European Convention on Human Rights and is obliged by international law to ensure that English law does not contravene the Convention. Under the Human Rights Act 1998 the main provisions of the European Convention on Human Rights became part of UK law and thus enforceable through the English courts. Other factors which would limit the power of Parliament are: the existence of an opposition party, or parties, whose duty is to seek to curb or limit government proposals; Parliamentary question time which is held daily, when ministers, including the Prime Minister, must justify their activities; the two-chamber system whereby the House of Lords can at least delay the passing of legislation; and public opinion, pressure groups, freedom of speech and publicity through the media. Once laws are enacted by Parliament the interpretation of those laws is carried out by the judges in the courts. If Parliament has passed a law which is seen to be too harsh or too extensive in its application it may be possible for the judges, by restrictive interpretation of the words of the statute, to limit the scope of the new rule.

Acts of Parliament, which can also be called statutes, contain the main laws made by Parliament, acting in its legislative role. Until the statute or Act has passed through all its stages in both Houses and received the Royal Assent, it is referred to as a bill.

The inspiration for new legislation may come from a number of sources. A new government will have made manifesto commitments and will have outlined its own policies. During its first year or so in office it will be keen to push through those changes which were outlined in its election manifesto. Inevitably this source of new legislation becomes comparatively less significant as the government’s term of office, a maximum of five years, progresses. Each of the major government departments will have a programme of legislation which it would like to introduce. Parliamentary time is at a premium and this may well produce competition between departments. Where a small measure is needed a department may seek to persuade a private member who has won a high place in the private members’ ballot to introduce a bill on its behalf.

New laws may also be needed to implement recommendations of the Law Commission, a body established in 1965 to review the law with a view to its systematic development and reform. Occasionally the government of the day sets up Royal Commissions or other special committees of enquiry. These are usually established to investigate one specific topic area and they will be disbanded once their reports are published. Many of these reports gather dust and do not result in their recommendations being implemented in legislation. In other cases the recommendations may be implemented. Examples include the Robens Report on Health and Safety, which very quickly became the Health and Safety at Work etc. Act 1974, and the Royal Commission on Criminal Justice, appointed in the wake of miscarriages of justice such as the ‘Birmingham Six’, which resulted in changes to the law (see the Criminal Appeal Act 1995). There is a limited scope for individual politicians to introduce private members’ bills, by which means small changes may be introduced into our law. Occasionally new laws will be required to meet a sudden emergency and, where necessary, Parliament can act with considerable speed. It is possible for an Act of Parliament to pass through all its stages in both Houses and receive the Royal Assent in a day if necessary.

Once an idea for a piece of legislation has been accepted by the Legislation Committee of the Cabinet there will usually follow an intensive period of deliberation and consultation. Parliamentary Counsel (the draftsmen of the bills) will then be required to draw up the bill clause by clause. Many bills will be significantly redrafted before they are enacted in their final version. The problems which beset the draftsmen include: the lack of precision of our language; trying to reconcile many conflicting demands; attempting to cover situations which can be envisaged but which have not yet arisen in practice; and pressure of time. Not surprisingly many Acts of Parliament are subsequently found to create interpretative difficulties which must be resolved in the courts.

Acts of Parliament begin life as bills, which may be either public, private or private member’s bills. Public bills comprise the vast majority passed in each parliamentary session and are general in their operation. An example of a private bill may be one promoted by a local authority to authorize some activity specifically in its own local area. Private members’ bills provide the limited opportunity available in each parliamentary session for an MP to introduce some proposals for change in the law on a topic of his or her choice; private members’ bills are public bills. Public bills are usually introduced by government departments, and may be introduced in either House. The likelihood is that most of these public bills will be passed. A government, particularly one with a large majority, has an effective stranglehold on procedures in Parliament. Non-controversial bills are often introduced in the House of Lords but all money bills must be introduced in the Commons.

The normal procedure in both Houses is that when the bill is introduced it will have its first reading. Normally the sponsors of the bill present it in dummy form at the table of the House and one of the clerks reads out the title. The bill is then deemed to have been read for the first time. It is next ordered to be printed and published, and a date fixed for the second reading. Its second reading is the occasion for a parliamentary debate on the principles of the bill. The bill is not considered clause by clause at this stage. There will be a vote at the end of the debate and the bill could be rejected at this stage. Assuming that the bill is not lost it is then referred to a committee, to undergo its committee stage. It will usually go to a standing committee of between 16 and 50 members, chosen to reflect the relative strength of the political parties in the House, and having regard to the special qualifications, concerns and interests of the MPs in question. These standing committees will consider the bill in detail, examining it clause by clause, trying to produce a result which is unambiguous. The committee will also deal with proposed amendments to the bill. Where a bill is of major constitutional importance, the committee stage may be taken in a Committee of the Whole House. However, the drawback of this system is that, while it sits as a committee, no other business can be conducted by the House.

Many of the amendments proposed to the bill at the committee stage may be put down by the minister in overall charge of the bill himself. These proposed amendments may reflect afterthoughts by him/her or officials, or they may be the result of concessions to outside pressure groups. Once the committee stage is completed, the bill is then reported back to the House (the report stage) when the changes introduced in committee will be outlined. There is then a third reading of the bill, often done immediately after the report stage is concluded, and the debate on the third reading may culminate in a vote.

Where the measures proposed are controversial, both the government and the opposition will be anxious to have as many of their supporters voting as possible, and each may have issued a three-line whip, which is an instruction to their supporters to attend and vote in accordance with instructions. The whip system is the means by which political parties control and organize their members in Parliament. There is a system of whipping in the Lords, but its principal importance is in relation to the activities of the House of Commons. The name comes originally from the world of hunting. The whipper-in is a hunt official charged with the control of the hounds. The word has now transferred itself to the parliamentary context. A whip in Parliament is a person whose job it is to give information to his or her party members and to maintain discipline among them.

Once the bill successfully passes all its stages in both Houses, it receives the Royal Assent and becomes an Act of Parliament. It takes effect from the date on which it receives Royal Assent, or from the date of commencement set out in the Act itself, or from a date to be fixed in the future. Power to fix that date will usually by given to an appropriate minister. The Act then remains in force until it is repealed. Repeals are effected by exactly the same process. It is usual to refer to the Act by its short title, for example, the Sale of Goods Act 1979, or the Arbitration Act 1996. Unless the Act states to the contrary, it will apply throughout the UK.

Nowadays Acts of Parliament follow a fairly standard pattern. Before setting out any of the main text there is a long title which establishes the purpose of the Act. For example, the Arbitration Act 1996 states that it is ‘an Act to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes.’ The main text is then divided into sections and subsections and, if appropriate, the whole Act will be set out in parts. Where the Act contains detailed lists, these will often be contained in a schedule to the Act. Most modern Acts have sections which deal with definitions, repeals, date of commencement and area of operation. The interpretation section in an Act of Parliament is important because within it the draftsman of the Act can set out the precise meaning of a word for the purpose of that Act only. This can be of considerable help to judges when they subsequently need to interpret the exact meaning of the legislation. The repeals section will indicate which earlier Acts or regulations or parts of Acts and regulations have been repealed by the present Act.

Pressure groups

It is undoubtedly true today that in drawing up and seeking to implement its legislative programme, no government can afford to ignore the views of pressure groups. Joining a pressure group is one of the way...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Preface to the sixth edition
• Table of statutes
• Table of cases
• 1. The nature of law
• 2. The United Kingdom and the European Union
• 3. Settlement of disputes
• 4. Central and local government
• 5. Business organizations
• 6. The law of contract
• 7. Special contracts
• 8. Special contracts – building contracts
• 9. Employment law
• 10. The law of tort
• 11. Health and safety
• 12. Land law
• 13. Landlord and tenant
• 14. Planning law
• 15. Highways
• 16. Building Regulations
• Index